Judge: Gail Killefer, Case: 20STCV31276, Date: 2022-10-03 Tentative Ruling
Case Number: 20STCV31276 Hearing Date: October 3, 2022 Dept: 37
HEARING DATE: October 3, 2022
CASE NUMBER: 20STCV31276
CASE NAME: Meco Properties, LLC. v. Weather Masters
Waterproofing, Inc., et al.
MOVING PARTIES: Defendants, Weather Masters Waterproofing, Inc., a
dissolved corporation, and WMW, Inc.
RESPONDING PARTY: Plaintiff, Meco Properties, LLC.
TRIAL DATE: November
8, 2022
PROOF OF SERVICE: OK
MOTION: Defendants’
Motion for Summary Judgment Or, In The Alternative, Summary Adjudication
OPPOSITION: September
19, 2022
REPLY: September
28, 2022
RECOMMENDATION: Defendants’ motion is
granted as to the second cause of action and otherwise denied. Defendants are
to give notice.
Background
This action arises in connection with the construction
of a new house located at 1875 N. Crescent Heights Blvd., Los Angeles,
California (“Subject Property”). The owner of Subject Property, Walter Schild
(“Schild”), assigned all rights, claims, and causes of action to Meco
Properties, LLC (“Plaintiff”). Schild entered into a written contract with Finton
Construction (“Finton”) in or about April 2011 for the construction of the
Subject Property. On July 15, 2011, Finton, in turn, entered into a subcontract
agreement (“Subcontract Agreement”) with Weather Masters Waterproofing, Inc,
and its successor entity, Defendant WMW, Inc. (collectively “Defendants”).
According to the Complaint, Schild, and Plaintiff as assignee, was a
third-party beneficiary of the Subcontract Agreement. Further, Plaintiff
alleges the Subcontract Agreement was for the supply and installation of
waterproofing at the Subject Property. According to the Complaint, Defendants
breached the Subcontract Agreement by failing to construct waterproofing at the
Subject Property and, through defective materials and workmanship, caused water
intrusion and property damage to the Subject Property.
Plaintiff’s Complaint alleges 3 causes of action as
follows: (1) breach of contract, (2) negligence, and (3) breach of implied
warranty.
Defendants now move for summary judgment, or, in the
alternative, summary adjudication on each cause of action. Plaintiff opposes
the motion.
Request
for Judicial Notice
Defendants
request judicial notice of the following in support of their motion:
Defendants’ request is granted. The existence and legal significance of this document is a
proper matter for judicial notice. (Evidence Code § 452(h).) However, the court
may not take judicial notice of the truth of the contents of the
documents. (Herrera v. Deutsche Bank National Trust Co. (2011)
196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to
show their existence and what orders were made. The truth of the facts
and findings within the documents are not judicially noticeable. (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 885.)
Evidentiary
Objections
Plaintiff
objects to the declaration of Ben Moghaddam:
Objection
1-2: Overruled. Declarant, as president for Defendants, does not lack
foundation. Not argumentative or vague.
Objection
3: Overruled. Declarant’s description of series of events is not vague or
ambiguous.
Objection
4: Overruled. Declarant’s attestations of additional work orders submitted are
not irrelevant as they directly relate to the need for repairs or additional
work for the Subject Property.
Objection
5-6: Overruled. See objection 1-2.
Objection
7: sustained-in-part, as to “by subsequent contractors or trades,” and “that
foot traffic and exposure to the elements,” Declaration lacks foundation and
personal knowledge to speak to cause of any damage.
Objection
8-11: Overruled. See objection 4.
Objection
12: Sustained. Hearsay, referenced document lacks authentication.
Objection
13: Sustained, see objection 12.
Objection
14: overruled. Not vague or ambiguous or a misstatement of facts.
Discussion
I.
Legal Authority
“The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties' pleadings in order
to determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) CCP § 437c(a)
provides:
A party
may move for summary judgment in any action or proceeding if it is contended
that the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at
any time after 60 days have elapsed since the general appearance in the action
or proceeding of each party against whom the motion is directed or at any
earlier time after the general appearance that the court, with or without
notice and upon good cause shown, may direct….
The motion shall be heard no later than 30 days before the date of
trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the
time within which a party must otherwise file a responsive pleading.
A motion for summary judgment may be granted “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” (CCP § 437c(c).)
“The motion shall be supported by affidavits,
declarations, admissions, answers to interrogatories, depositions, and matters
of which judicial notice shall or may be taken.
The supporting papers shall include a separate statement setting forth
plainly and concisely all material facts that the moving party contends are
undisputed. Each of the material facts
stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In analyzing motions for summary judgment, courts must
apply a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent's claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294 (Hinesley).) CCP § 437c(p)(2) provides:
A
defendant or cross-defendant has met his or her burden of showing that a cause
of action has no merit if the party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be established, or that
there is a complete defense to the cause of action. Once the defendant or cross-defendant has met
that burden, the burden shifts to the plaintiff or cross-complainant to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto. The
plaintiff or cross-complainant shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.
The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Hinesley, 135 Cal.App.4th
at p. 294; Dore v. Arnold Worldwide, Inc.
(2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.”].) A
motion for summary judgment must be denied where the moving party’s evidence
does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475 (Leyva)) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384,
387).
II.
Factual Summary
On July 15, 2011, Weather Masters entered into the
Subcontract Agreement with Finton for “above and below Grade Waterproofing” at
the Subject Property. (MF 2.)
The parties dispute when the waterproofing of the
Subject Property was completed. (MF 3.) Defendants contend the waterproofing
was originally completed “through mid-2015,” whereas Plaintiff contends
Defendants submitted additional work authorization forms well into 2016. (MF
3-4.) Defendants also contend that in 2015, “a water intrusion problem was
identified” at the Subject Property “by its owner Walter Schild and/or by the
general contractor Finton Construction” and thereafter, “a series of email
exchanges, site meetings and written proposals occurred concerning this
issue...” (MF 4.) However, Defendants submit only the declaration of its
president, Ben Moghaddam, in support of these claims. (Id.) Plaintiff
contends it was not put on notice of any intrusion or defect as the “general
contractor is not an agent of Plaintiff for purposes of establishing the
running of the statute of limitations.” (Id.) Plaintiff also submits the
declaration of Walter Schild in dispute of Defendants’ claims, stating he did
not identify any water intrusion problems on the Subject Property. (Id.)
Defendants also contend further communications took
place with Finton “regarding further waterproofing work to address the water
intrusion issues,” but submit no evidence to substantiate the substance of
these correspondences beyond work authorization forms. (MF 5-14.) Defendants
point to a November 4, 2015 meeting with Finton at the Subject Property as also
establishing notice for Plaintiff. (MF 7-8.)
It is also undisputed that James West Roofing and
Waterproofing Consultant produced a report (“Report”) dated February 8, 2017,
following a January 30, 2017 inspection of the Subject Property. (MF 15.) The
Report was sent to Defendants by Schild in April 2018 along with a “Notice of
Claim.” (Id.)
III.
Analysis
A. Barring
of Plaintiff’s Claims by Applicable Statutes of Limitations
Here, Defendants show Plaintiff filed its Complaint on
August 18, 2020. (Motion, 4-5.) Defendants correctly point out Plaintiff
alleges liability as a breach of a contract and implied warranties, as well
under a general theory of negligence. (Id.)
Defendants correctly explain a breach of contract
claim is governed by a four-year statute of limitations, pursuant to CCP § 337(a).
(Motion, 6.) Defendants contend Plaintiff’s first cause of action is time
barred as Plaintiff was put on “actual notice and constructive notice of damage
at the [Subject Property] in or about 2015 or earlier, when a water intrusion
problem was identified” and “on October 28, 2015,” when Defendants and Finton
“had multiple email correspondences regarding waterproofing” of the Subject
Property. (Id.) Defendants further contend that on November 5, 2015,
Defendants “attended a meeting at [Subject Property] with representatives of
Finton and the Property Owner to discuss the water intrusion issues and the
exterior decks waterproofing.” (Id.) However, Defendants only introduce
evidence of email correspondences between Defendants and Finton, not including
any alleged “representatives” of Schild. (MF 8.) Defendants fail to provide
sufficient factual evidence to show when any alleged identification of water
intrusion problems took place, and fail to provide further evidence of any
alleged correspondences between Defendants and Finton, as general contractor of
Subject Property.
Defendants contend that since Plaintiff was allegedly
put on notice “at least as early as October 28, 2015,” Plaintiff’s first cause
of action is time-barred. (Motion, 7.) Defendants fail to point to any
supporting authority for the contention that any conversations with a general
contractor, here Finton, would necessarily provide constructive notice to
Plaintiff, as assignee of Schild.
Next, Defendants contend Plaintiff’s second cause of
action for negligence is also time-barred as it is governed by CCP § 338(b).
(Motion, 8-9.) Defendants again point to the November 5, 2015 meeting as
establishing constructive notice for Schild and his assignee, Plaintiff. (Id.) Defendants also point to the Report prepared
February 8, 2017, to establish the statute of limitations also bars Plaintiff’s
negligence claim. (Motion, 9.)
Lastly,
Defendants reiterate that any claims regarding a warranty are contract claims
in nature, they are also governed by the four-year statute of limitations.
(Motion, 9-10.) Therefore, Defendants contend the third cause of action is
similarly time-barred as Plaintiff’s first cause of action. (Id.)
In
opposition, Plaintiff contends “Defendants have failed to provide admissible
evidence to support the undisputed accrual date for any cause of action alleged
in the complaint.” (Opposition, 2.) Plaintiff also points to the dueling
declarations submitted by the parties as necessarily creating triable issues of
material fact, which obligate a denial of summary adjudication. (Id.;
Opp., 7.) Plaintiff further contends the statute of limitations on any cause of
action can only begin to run after a discovery of actual injury, and not the
“mere threat of future harm.” (Opp., 5; citing United States Liab.
Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 597.) Plaintiff thus
contends “Defendants offer no admissible evidence concerning the date by which
Plaintiff suffered damages because of a defect alleged regarding the
waterproofing.” (Opp., 6.) Lastly, Plaintiff argues since the construction and
installation on the Subject Property involved “multiple separate structures at
issue on the property, and multiple separate assemblies/areas within those
structures that Defendants waterproofed,” any time-barring of the statute of
limitations for one alleged water intrusion does not “bar as a matter of law to
Plaintiff’s claims for damages arising from other waterproofed areas on the
Property.” (Opp., 7-8.) However, Plaintiff fails to elaborate or point to
supporting authority for the contention that any discovery of alleged harm
caused by defective or negligent work product on the Subject Property does not
at least create constructive notice as to the entirety of the work done on the
Subject Property.
In reply,
Defendants first correctly point out Schild’s declaration undermines his own
claims that he was unaware of any waterproofing issues for “more than 3 years
prior to the complaint being filed,” since the Report was prepared and
highlighted waterproofing issues over 3 years before the filing of the Complaint.
(Reply, 2.) As such, Defendants correctly contend the Report the Report “put
Mr. Schild, and thus Plaintiff as his supposed assignee, on actual and
constructive notice of the water intrusion issues at the Property” on February
8, 2017, as the Report is dated, “which was more than 3 years prior to the
Plaintiff’s Complaint being filed...” (Id.) As such, Defendants contend
the second cause of action for negligence is time-barred because of the Report.
(Reply, 3.)
Defendants
further reiterate their contentions regarding the October 28, 2015
correspondences, the November 2015 meeting with Finton, and the April 14, 2016
“Disclaimer of Responsibility” letter as having put Plaintiff on notice and
subsequently acting as a time-bar for Plaintiff’s first and third causes of
action. (Reply, 3-4.)
Here, the
undisputed facts show Schild, as owner of Subject Property and assignor of
rights to Plaintiff, received a prepared Report dated February 8, 2017,
highlighting the defective and/or negligent waterproofing issues of the Subject
Property. Since August 18, 2020, is over three years past the date of the
prepared Report, as a matter of law, the court finds Plaintiff’s second cause
of action for negligence to be barred by the appropriate statute of limitations
pursuant to CCP § 338(b).
Next,
viewing the evidence submitted in the light most favorable to Plaintiff, the
court finds that triable issues of material fact exist with regard to the first
and third causes of action.
Specifically,
triable issues of material fact exist as to whether Plaintiff was put on actual
or constructive notice done to the Subject Property regarding any waterproofing
issues before the lapse of the four-year statute of limitations. While
Defendants point to an alleged meeting which took place, and attest to alleged
conversations having taken place which provided notice to Plaintiff, competing
declarations regarding the sequence of events necessarily ask this court to
weight the credibility of evidence present, which this court cannot do at the
summary adjudication junction.
“Interpretation of
a contract is a question of law “when it is based
on the words of the instrument alone, when there is no conflict in the
extrinsic evidence, or when a determination was made based on incompetent
evidence.” [citation omitted] (Oakland-Alameda County Coliseum
Authority v. Golden State Warriors, LLC (2020) 53 Cal.App.5th 807,
818-819.) However, “if interpreting the contract involves
deciding between “conflicting extrinsic evidence concerning the meaning of ...
contractual provisions,” or “divergent testimony about what the parties
understood certain contractual provisions to mean,” then it is a factual
question, not a legal one.” [citation omitted] (Id.)
Because
interpretation of the Subcontract Agreement, and the notice provided to
Plaintiff here of any breach and resulting damages to the Subject Property, also
involves conflicting extrinsic evidence in this instance, the court finds
several triable issues of material fact exist regarding when Plaintiff was made
aware, or could have been made aware with reasonable due diligence, of any
breach by Defendants and its resulting damages.
For
these reasons, Defendants’ motion is denied as to the first and third causes of
action.
Conclusion
Defendants’ motion is granted as to the second cause
of action and otherwise denied. Defendants are to give notice.